Eye for an Eye

Bava Kama (8:1) | Yisrael Bankier | 4 months ago

The eighth perek of Bava Kama begins by discussing the five elements
of compensation one must pay for harming another – nezek (damage),
tza'ar (pain), ripui (medical expenses), shevet (inability to
work) and boshet (shame). A difficulty one might face is that the
Torah states "an eye for an eye" (Shemot 21: 24). The simple
understanding of the verse is that one is punished with the same
physical injury that he caused. That is indeed the question of the
Gemara (Bava Kama 83b).

The Gemara continues with several textual and logical proofs that the
Torah in this instance is not meant to be taken literally and the
compensation is monetary. For example, the Rambam (Chovel U'mazik
1:3) cites one of the textual proofs, where since the Torah states "Do
not accept a ransom for the soul of a murderer", it implies that
monetary payment would not be accepted to release a murderer, but
payment would be accept in the case of physical injury. In contrast, the
Ibn Ezra cites the logical argument that it would be impossible to
inflict the exact wound as the original one caused.

One may ask, if the Torah was not meant to be taken literally why then
did the Torah write "an eye for an eye"? The Torah could have simply
written that one must pay to compensate the victim. There are a number
of answers to this question also, however I will present the answer I
heard from R' Yehuda Amital ztz"l.

The pasuk in Mishlei (1:8) states, "hear, my child, the discipline
of your father (musar avicha), and do not forsake the teaching of your
mother (torat imecha)." The Midrash (Mishlei 1:8) explains that
musar avicha refers to torah she'bichtav – the written text of the
Torah. Torat imecha however refers to the oral tradition that was
also given at sinai.

The Midrash's description of torah she'bichtav as musar avicha and
torah she'be'al peh as torat imecha is significant. It explains the
relationship between the two and why specifically in our case both are
needed and presented quite differently.

By way of example, if child misbehaves badly the reaction of the parent
can necessarily differ. It may be that the father reacts very harshly
threatening all forms of punishment, e.g. "I'm going to beat you! You
are never leaving the house again!" The mother may present the calmer
face tempering the father's response, e.g. "it's not so bad, we can fix
this" etc. Why in some situations are both responses necessary? Because
the child needs to appreciate the severity of what they have done even
if not deserving a severe punishment.

Returning to our question. Had the Torah simply taught that
compensation for a physical injury in monetary, then the severe nature
of the crime would not be conveyed. It could give the impression that
compensation in this case is no different to compensation when one
damages another's property; both cases are resolved with a monetary
payment. Consequently, musar avicha teaches that the crime is far more
severe and having caused another harm, he really deserves the damage be
reciprocated. Nevertheless, torat imecha tempers the punishment such
that ultimately the matter is resolved commensurately with a monetary
payment.

Indeed, the Rambam (cited above) explains in a similar manner:

That which the Torah states: "just as one caused any injury to a
person, so you should give him" does not mean that you should injure
him in the same manner as he injured the other. Rather that the person
deserves to lose a limb or bear the same injury and must therefore pay
for the damage he caused.